Brown v Western Australia [2001] FCA 1462 (19 October 2001)

Last Updated: 19 October 2001

FEDERAL COURT OF AUSTRALIA

Brown v State of Western Australia [2001] FCA 1462

NATIVE TITLE - consent determination - criteria - within power and appropriate - remote desert community - connection established - variation provision pending High Court decision - deferred creation of prescribed body corporate

Native Title Act 1993 (Cth) s 87 s 225

JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE v THE STATE OF WESTERN AUSTRALIA, TELSTRA CORPORATION LIMITED, AURORA GOLD (WA) PTY LTD

WAG 6019 OF 1998

FRENCH J

19 OCTOBER 2001

MUYIN

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG6019 OF 1998

BETWEEN:	JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE APPLICANT
AND:	STATE OF WESTERN AUSTRALIA FIRST RESPONDENT TELSTRA CORPORATION LIMITED SECOND RESPONDENT AURORA GOLD (WA) PTY LTD THIRD RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	19 OCTOBER 2001
WHERE MADE:	MUYIN

THE COURT NOTES:

A. That pursuant to section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court a Minute of Proposed Consent Determination of Native Title dated 12 September 2001 which reflects the terms of an agreement reached by the parties in relation to these proceedings.

B. That the terms of the agreement involve the making of a determination of native title in relation to the land and waters the subject of these proceedings pursuant to section 87(2) and section 94A of the Native Title Act.

C. That the Applicant has yet to establish and nominate a prescribed body corporate which will perform the functions required by either section 56 or 57 of the Native Title Act.

D. That the parties have agreed that the registered native title body corporate which will hold the Applicant's native title in trust, or will perform the functions referred to in sections 57(3) and 58 of the Native Title Act as the case may be, may seek a variation of the determination of native title in this matter (as it relates to minerals and petroleum) in accordance with subsections 13(1) and (5) of the Native Title Act in the event that the ruling in the Federal Court in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 with respect to minerals and petroleum is, in High Court Appeals Registry Nos P59 of 2000 (State of Western Australia v Ward & Ors), P62 of 2000 (Attorney General of the Northern Territory v Ward & Ors), P63 of 2000 (Ningmarmara & Ors v Northern Territory of Australia & Ors), and P67 of 2000 (Ward & Ors v Crosswalk Pty Ltd & Ors), overturned, set aside, remitted to the Federal Court or is otherwise found to be an incorrect legal ruling.

E. Subject to F below, if the Applicant's registered native title body corporate makes such an application within 3 months of the delivery of the High Court decision, the parties to this consent determination will consent to that application being argued on its merits.

F. Upon such application being made, nothing in E above or otherwise prevents any party from opposing a variation to the determination on the basis of the merits of such application.

IN THOSE CIRCUMSTANCES THE COURT MAKES THE FOLLOWING ORDERS:

1. The Court, being satisfied that a determination of native title as agreed between the parties would be within the power of the Court and, it appearing to the Court appropriate to do so, the Court, pursuant to section 87(2) of the Native Title Act, and by the consent of the parties, makes the determination of native title attached to this Order.

2. Within three months of the date of this determination coming into effect, a representative of the common law holders of the native title rights and interests be requested to indicate whether they intend to have the native title rights and interests held in trust and if so by whom. They are invited to do so by:

(a) nominating in writing to the Federal Court a prescribed body corporate to be trustee of the native title rights and interests; and

(b) including within the nomination the written consent of the body corporate.

3. If a prescribed body corporate is nominated in accordance with Order 2, it will hold the native title rights and interests described in Order 1 in trust for the common law holders of the native title rights and interests.

4. If a prescribed body corporate is not nominated in accordance with Order 2, the native title rights and interests described in Order 1 will be held by the Kiwirrkurra people (as defined in the determination) in respect of the determination area as the common law holders of the native title rights and interests.

5. If a prescribed body corporate is not nominated in accordance with Order 2 and native title is therefore held by the Kiwirrkurra people as the common law holders of the native title rights and interests in accordance with Order 4, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act.

6. Until such time as there is a registered native title body corporate in relation to the determination area, any notices required under the Native Title Act or otherwise to be served on the common law holders may be served upon the Ngaanyatjarra Council Aboriginal Corporation, and such service shall be deemed to be sufficient.

7. There be liberty to any party to apply on 7 days written notice.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG6019 OF 1998

BETWEEN:	JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE APPLICANT
AND:	STATE OF WESTERN AUSTRALIA FIRST RESPONDENT TELSTRA CORPORATION LIMITED SECOND RESPONDENT AURORA GOLD (WA) PTY LTD THIRD RESPONDENT

JUDGE:	FRENCH J
DATE:	19 OCTOBER 2001
PLACE:	MUYIN

CONSENT DETERMINATION OF NATIVE TITLE

The Court orders, declares and determines, with the consent of the parties that:

1. The Determination Area is the land and waters described and depicted in the First Schedule.

2. Native title exists in relation to the Determination Area.

3. The native title rights and interests are held by the Kiwirrkurra people as the common law holders of the native title rights and interests. The Kiwirrkurra people are those people described in the Second Schedule.

4. Subject to paragraphs 5, 6, 7 and 8:

(1) the nature and extent of the native title rights and interests held by the Kiwirrkurra people in relation to the Determination Area are the right to possess, occupy, use and enjoy the land and waters of the Determination Area to the exclusion of all others, including:

(a) the right to live on the Determination Area;

(b) the right to make decisions about the use and enjoyment of the land and waters of the Determination Area;

(c) the right to hunt and gather, and to take water and other traditionally accessed resources (including ochre) for the purpose of satisfying their personal, domestic, social, cultural, religious, spiritual and communal needs;

(d) the right to control access to, and activities conducted by others on, the land and waters of the Determination Area;

(e) the right to maintain and protect sites which are of significance to the Kiwirrkurra people under their traditional laws and customs; and

(f) the right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners of the Determination Area.

(2) the native title rights and interests are exercisable in accordance with the traditional laws and customs of the Kiwirrkurra people.

5. Notwithstanding anything in this determination:

(a) the native title rights and interests (in accordance with the decision of the Federal Court in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 include ochre but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA); and

(b) the native title rights and interests only confer on the Kiwirrkurra people such rights in relation to flowing and subterranean waters as exist at law;

(c) nothing in this paragraph is intended to affect the rights of the Kiwirrkurra people (including any registered native title body corporate) under subsections 13(1) and 13(5) and the item "Revised native title determination application" in the table in subsection 61(1) of the Native Title Act.

6. The nature and extent of other interests in relation to the Determination Area are those set out in the Third Schedule.

7. The native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth including the common law.

8. The relationship between the native title rights and interests referred to in paragraph 4 in the land and waters described in the First Schedule and the other rights and interests referred to in paragraph 6 ("the other rights and interests") is that:

(a) the other rights and interests and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests co-exist with the native title rights and interests except to the extent that the other rights and interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the native title rights and interests have no effect in relation to the other rights and interests to the extent of the inconsistency; and

(b) for the avoidance of doubt, the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other rights and interests; and the other rights and interests, and the doing of any activity required or permitted to be done by or under the other rights and interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them.

FIRST SCHEDULE

The Determination Area is ALL those areas of land and waters in the State of Western Australia contained within the boundaries of the following description:

All those lands and waters commencing at the westernmost northwestern corner of Special Lease 3116/10897 and extending easterly along the northern boundary of that Special Lease and the northern boundary of Reserve 40786 and again along the northern boundary of Special Lease 3116/10897 and onwards to the State Border at Lat 22.246820 South; Thence south along that border to Lat 23.498578 South; Thence westerly to the westernmost western boundary of Special Lease 3116/10897 at Lat 23.498607 South; Thence north along that boundary to the commencement point;

which Determination Area is outlined blue on the Plan annexed to this Schedule.

SECOND SCHEDULE

The Kiwirrkurra people are:

those people who hold in common the body of traditional law and culture governing the Determination Area and who hold native title rights and interests in the Determination Area at the following three levels:

(a) The total group level:

Here all the Kiwirrkurra people hold in common the native title rights (amounting to ownership) of the total land area of the Determination Area. This is the most important level of the system, for in the final analysis the total group is the decision-making body, and the rights of the total group in the overall land area are the over-riding ones.

(b) The individual level:

Here each individual among the Kiwirrkurra people has his or her particular rights in individual places in the Determination Area. For each individual, such places may be concentrated in a certain part of the Determination Area or they may be in different parts of it. These rights of the individual may have been obtained directly (by conception, birth and the like) or by virtue of a direct connection of one or more of that person's antecedents. The total group of Kiwirrkurra people must take into account the individual level of connection in any instance of the exercise of native title rights.

(c) The local group level:

Here the Kiwirrkurra people may be seen as belonging to a set of local groups each of which is associated with a particular localised area within the Determination Area.

The membership of the local groups comprises the bilateral descendants of an antecedent set of siblings which is associated with the area concerned. There are twenty such local groups among the Kiwirrkurra people, and the sets of antecedent siblings from which these groups derive is set out here. As is the case with the individual level of connection, the total group of Kiwirrkurra people must take into account the local group level of connection in any instance of the exercise of native title rights.

Antecedents of Local Group 1 (Kiwirrkurra area and east)

Watjapayi tjangala (the father of the applicant Jimmy Brown)

Nangurri nangala

Minpurru tjangala

Wuta Wuta tjangala

Yartipayi tjangala

Kalutara/Wintarru tjangala

Anmanari nangala

Papalya nangala

Wangalya nangala

Narnu nangala

Pilamartitja tjangala

Pipantji tjangala

Ngilkirr tjangala

Tjinyirji tjangala

Yuwiyuwi tjangala

Manturnya tjangala

Kakalyi nangala

Roger tjangala

Livingstone tjangala

Walter Brown tjangala

Donovan Brown tjangala

Thompson Brown tjangala

Roger Brown tjangala

Harry Brown tjangala

Jonathan Brown tjangala

Ian Brown tjangala

Joey Brown tjangala

Maria Turner nangala

Alistair Turner tjangala

Lance Turner tjangala

Ray James tjangala

Yunurupa nangala Mathua James nangala

Georg Yapa tjangala

Antecedents of Local Group 2 (Winparrku Tarkurr to Lake Mackay)

Lantil tjapanangka

Tuntji tjapanangka

Arthur Partuta tjapanangka

Kurutilit tjapanangka

Mutikalka tjapanangka

Antecedents of Local Group 3 (Kiwirrkurra area towards Lake Mackay)

Malpamurtu tjakamarra

Tjilpakarnu tjakamarra

Kununginya tjakamarra

Wanarritjarra tjakamarra

Tjititjiti tjakmarra

Antecedents of Local Group 4 (west sector to Pollock Hills area and north)

Tjukuti tjakamarra

George West tjakamarra

Paul West tjakamarra

Antecedents of Local Group 5 (Yumari to south-east claim area)

Yirtjuru tjapangarti

Nyilari tjapangarti

Rartji tjapangarti

Yawalyuru tjapangarti

Antecedents of Local Group 6 (Dover's Hills area)

Charlie Tarawa tjungarrayi

Tjuta tjungurrayi

Antecedents of Local Group 7 (Dover's Hill area)

Talpana tjampitjinpa

Tjuparrku tjampitjinpa

Tjangantjukurrpa tjampitjinpa

Henry tjampitjinpa

Reginald tjampijinpa

Sarn tjampitjinpa

Antecedents of Local Group 8 (Dover's Hill area)

Mikini (McKinnon) tjupurrula

Billy Barku tjupurrula

Tjatuli napurrula

Murphy tjupurrula

Antecedents of Local Group 9 (Angas Hills to west side of Pollock Hills)

Tjurti tjapaltjarri

Tjampi tjampi tjapaltjarri

Natiki Kuli tjapaltjarri

Tjalyuri tjapaltjarri

George Tjampu tjapaltjarri

Murmuya napaltjarri

Antecedents of Local Group 10 (Ngatarn area and south (SE Claim area))

Yala yala Gibson tjungurrayi

Willy Ngitjita tjungurrayi

Melba nungurrayi

Wakarnintja tjungurrayi

Tjikutja nungurrayi

Antecedents of Local Group 11 (Lake MacDonald area and south)

Piningka tjungurrayi

Kawartalnga tjungurrayi

Lungkarta tjungurrayi

Antecedents of Local Group 12 (central area inc. Kiwirrkurra)

Karukaru tjungurrayi

Waku tjungurrayi

Kuku tjungurrayi

Yirrimatitja tjungurrayi

Manyinya nungurrayi

Yumpulurru tjungurrayi

Antecedents of Local Group 13 (Kanapilyirr and north (NE Claim area))

Nyurri tjangala

Marrukurru tjangala

Langanyirtu tjangala

Tjapantjarra tjangala

Wartatjanu tjangala

Nyilunnga tjangala

Tjinanyi tjangala

Pakarrtjirri tjangala

Pikanatju tjangala

Papayi tjangala

Antecedents of Local Group 14 (Parrayilpil area (NE Claim area))

Bob Dingo tjapanangka

Yuendumu George tjapanangka

Bill Larry tjapanangka

Yanurl napanangka

Antecedents of Local Group 15 (Western sector - central Jupiter Well area)

Nanyuma napangarti

Charlie tjapangarti

Kanya tjapangarti

Pampartu napangarti

Kalyurri napangarti

Antecedents of Local Group 16 (Western sector)

Tjuulnga tjapaltjarri

Tjinapilpa tjapaltjarri

Mantjarlin tjapaltjarri

Parrkulya tjapaltjarri

Manya Ward napaltjarri

Nyunmul tjapaltjarri

Antecedents of Local Group 17 (Western sector, northern area)

Wingurru tjangala

Nawipayi tjangala

Nawunnga tjangala

Walayipayi tjangala

Weewungi tjangala

father of Parnayi tjampitjinpa

Yawarla nangala

Wayala tjangala

Lungunyalku tjangala

Wirrangarri tjangala

Nyakapantja tjangala

father of Eunice Eubena nampitjinpa

Antecedents of Local Group 18 (Western sector, northern area)

Tjinakarli tjapangarti

Gimme tjapangarti

Ngamapu napangarti

Yila tjapangarti

Wimitja tjapangarti

Kiilpa tjapangarti

Wanapayi tjapangarti

Les Tobacco tjapangarti

Betty napangarti

Marie Claire napangarati

Kurrpali napangarti

Tuckerbox tjapangarti

Antecedents of Local Group 19 (Western sector, northern to southern area)

Wutja tjupurrula

Nyangu tjupurrula

Ngalyakanpal napurrula

Piyungka napurrula

Ngapulyn Morgan napurrula

Antecedents of Local Group 20 (Western sector, northern area)

Nganyurti tjungurrayi

Yatju nungurrayi

Pinamparli nungurrayi

THIRD SCHEDULE

The nature and extent of other interests in relation to the Determination Area are:

Reserves for the "use and benefit of Aboriginal inhabitants"

(a) Reserves 40783, 40786 and part of 24923, all classified as class "A" reserves under the Land Administration Act 1997, and under the control and management of the Aboriginal Lands Trust pursuant to section 46 of the Aboriginal Affairs Planning Authority Act 1972;

(b) The rights and interests of the Lessee, being the Ngaanyatjarra Land Council (Aboriginal Corporation) of Lease 245 of Reserves 40783 and 40786 made on 29 November 1988 for a term of 99 years between the Aboriginal Lands Trust, the Minister for Aboriginal Affairs, the Aboriginal Affairs Planning Authority and the Ngaanyatjarra Land Council (Aboriginal Corporation), as far as the Lessee's rights and interests affect the native title rights and interests of the common law holders;

(c) The rights and interests of the Lessee, being the Ngaanyatjarra Land Council (Aboriginal Corporation) of Lease 243 of Reserve 24923 made on 29 November 1988 for a term of 99 years between the Aboriginal Lands Trust, the Minister for Aboriginal Affairs, the Aboriginal Affairs Planning Authority and the Ngaanyatjarra Land Council (Aboriginal Corporation), as far as the Lessee's rights and interests affect the native title rights and interests of the common law holders;

(d) The rights and interests of the Lessee, being the Aboriginal Lands Trust of Special Lease 3116/10897 made on 20 August 1992 for a term of 50 years between the Minister for Lands and the Aboriginal Lands Trust, pursuant to section 116 of the Land Act 1933(WA), as far as the Lessee's rights and interests affect the native title rights and interests of the common law holders;

(e) The rights and interests of the Sub-Lessee, being the Ngaanyatjarra Land Council (Aboriginal Corporation) of Sub-Lease 249 of Special Lease 3116/10172 (subsequently replaced by Special Lease 3116/10897), made on 29 November 1988 for a term of 50 years between the Aboriginal Lands Trust and the Ngaanyatjarra Land Council (Aboriginal Corporation), as far as the Sub-Lessee's rights and interests affect the native title rights and interests of the common law holders;

Telstra

(f) the interests of Telstra Corporation Limited:

(i) as the owner and operator of the telecommunications facilities installed within the Determination Area, including the Tietkins DRCS Radio Transmitter, Jazza DRCS Radio Transmitter, Angas DRCS Radio Transmitter, Pollock Hills DRCS Radio Transmitter, Top Up Rise DRCS Radio Transmitter, Nyinmi DRCS Radio Transmitter, customer radio terminals and cabling; and

(ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunication Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth).

Other rights and interests

(g) Any other rights and interests granted by the Crown pursuant to statute or by any valid executive or legislative act, which are current at the date of this determination.

(h) Any other rights or interests held by or under the Crown by the force and operation of the laws of the State or the Commonwealth as may be current at the date of this determination, including the force and operation of the Rights in Water and Irrigation Act 1914.

(i) Rights and interests of members of the public arising under the common law.

(j) A right of any employee or agent of the State, its agencies and instrumentalities, and of the Shire of East Pilbara, its employees and agents, to access the Determination Area (subject to the laws of the State) for the bona fide performance of their duties.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG6019 OF 1998

BETWEEN:	JIMMY BROWN ON BEHALF OF THE KIWIRRKURRA PEOPLE APPLICANT
AND:	STATE OF WESTERN AUSTRALIA FIRST RESPONDENT TELSTRA CORPORATION LIMITED SECOND RESPONDENT AURORA GOLD (WA) PTY LTD THIRD RESPONDENT

JUDGE:	FRENCH J
DATE:	19 OCTOBER 2001
PLACE:	MUYIN

REASONS FOR JUDGMENT

1 On 27 June 1995 a native title determination application was lodged at the National Native Title Tribunal on behalf of the Kiwirrkurra people.

2 The area under claim comprises some 42,228 square kilometres of land, extending west from the border between Western Australia and the Northern Territory. It covers three reserves vested in the Aboriginal Lands Trust for the use and benefit of Aboriginal people. They are subject to lease to the Ngaanyatjarra Land Council (Aboriginal Corporation). There is also a special pastoral lease also held by the Aboriginal Lands Trust and sublet to the Land Council.

3 The application has had a long history. Over six years have elapsed since it was filed with the Tribunal. In that time discussions have taken place between the State of Western Australia and the applicants in an endeavour to reach a negotiated resolution of the claim. In that time also the Native Title Act 1993 (Cth) ("the Act") has been significantly amended and there has been a change of State government following an election in February 2001. In the event, after a long process the parties have reached agreement about a consent determination.

4 By s 87 of the Act the Court can make orders in terms of, or consistent with, those agreed by the parties. The Court has to be satisfied that the orders are within its power to make and that they are appropriate. The proposed determination must comply with the requirements of s 225 of the Act which defines the term "determination of native title". I am satisfied that the form of the proposed determination accords with that definition.

5 It is a feature of the history of the claim area that the impact of European settlement upon it and on the Aboriginal people has been little and late. Central Australia as a whole, including the Western Desert, was among the last areas of the continent to be affected by the expansion of the colonising society. Because of the very marginal nature of the country from a European perspective and its great distance from non-Aboriginal centres, the claim area has been particularly insulated. Alice Springs is 700 kilometres to the east. It is the main service centre for Kiwirrkurra. Balgo, which is itself an isolated settlement, is some 400 kilometres to the north. A similar distance to the west are purpose built mining centres and the small aboriginal communities of the Pilbara. It is a 450 kilometre drive south to the small community of Tjukurla.

6 The anthropological report on the claim prepared in November 2000 by David Brooks, sets out the history of such interaction as there has been between European society and the Kiwirrkurra claimants. His report also describes the composition of the claimant group noting that twenty local descent groupings have been identified across the claim area together covering all the claimants. Each of these groups is associated with the genealogy which shows the "founding" antecedent sibling set and its descendants. All the adult claimants appear in the genealogies. He observes, at p 72 of his report:

"The Kiwirrkura system does not vest native title rights and interests in particular persons or groupings of persons in such a way that a neat delineation can be made of rights-holders and of rights which they might hold in particular places and in all circumstances. As pointed out at the beginning of this chapter, the extreme environmental conditions at Kiwirrkura have not permitted this. The thrust of the Kiwirrkura system, in these extreme conditions, has been towards an inclusivity of rights and interests, with the extension of 'insider' status across as wide a geographical area as possible - while still allowing for the holding of particular rights and interests by individuals and sometimes by mid-level groups." (sic)

He also observes that the meaningfulness of the term "the Kiwirrkurra mob" is underlined by the fact that taken together the people who live at Kiwirrkurra have rights and interests across the whole of the claim area. There is no other comparable grouping which has such rights and interests. The majority of the country for which all members of the Kiwirrkurra mob have ownership rights is within the claim area. Some of them have rights in country beyond the boundaries of the claim area but in most cases to a much lesser extent. In an overall sense there is a strong correspondence between the country of "the Kiwirrkurra mob" and the land delineated by the boundaries of the claim area. The Kiwirrkurra mob is the basic land holding group in terms of this claim. The claim area as a whole is a fundamental unit of tenure (at pp 28-29). Mr Brooks also looks at the particular rights and interests which can be identified within the framework of the claimants' relationship to the claim area.

7 The applicants' statement of facts and contentions sets out in a convenient summary form a description of the claimant group and the nature of its connection with the country which is a convenient summary of what appears in the anthropological report.

8 In relation to the description of the claimant group the following points are made:

"1. The Applicant and the Claimants ("the Applicants") are the direct descendants of those Aboriginal people, who at the time of the assertion of British Sovereignty held the land and waters the subject of the claim ("the Claim Area") in accordance with their traditional laws and customs.

2. A significant proportion of the Applicants were born on the Claim Area and did not make contact with non-indigenous Australians until late childhood or adulthood.

3. The Applicants as a group are defined according to kinship connections and as a result of common historical experience, tradition, language, spiritual and ancestral relationships with, and to, the Claim Area.

4. The most common, and probably the most meaningful self-referential label by which the Applicants refer to themselves is 'the Kiwirrkurra mob'.

5. The Applicants comprise 20 local groups and each individual is attached to one or more of these local groups.

6. The Applicants acquire land ownership unconditionally through birth, residence and descent but the capacity of a person to exercise authority over the land is mediated in proportion to their understanding of the ritual knowledge and ceremonial practise, which is one facet of that body of the Applicants tradition known to them as the Tjukurrpa."

9 The nature of the connection is described as follows:

"7. The Applicants are connected to the Claim Area at three distinct levels, which are:

a) the individual;

b) the local group; and

c) the Kiwirrkurra mob (or, as a whole).

8. The connection that the Applicants have to the Claim Area as a whole is regarded by them, in accordance with their traditional law, to be the most significant level of connection to the Claim Area.

9. The Applicants have lived on, and utilised, the Claim Area in accordance with the traditional laws that they acknowledge and the traditional customs that they observe, since time immemorial, and in particular the Applicants have:

(i) Lived in the Claim Area;

(ii) Traveled (sic) over and camped in particular places on the Claim Area;

(iii) Hunted and gathered bush foods on the Claim Area;

(iv) Burned the Claim Area;

(v) Conducted ceremonies and rituals as required by traditional law and custom on the Claim Area;

(vi) Cared for ceremonial sites and places of spiritual significance, in particular the many dreaming tracks that are within the Claim Area;

(vii) Utilised the biological and geological resources found in the Claim Area for the purposes of subsistence, technology, trade, ceremony and ritual;

(viii) Used the plants, animals and minerals for production of medicine which they have prepared on the claim area;

(ix) Exchanged and traded materials and resources derived from the Claim Area with neighbouring Aboriginal groups;

(x) Instructed their children in that body of traditional law and custom known to the Applicants as Tjukurrpa; and

(xi) Spoken their language.

10. To this day the Claimants maintain all of the practices that are referred to in paragraph 9.

11. The only other interests existing within the Claim Area are:

(i) The 99 year lease held by the Ngaanyatjarra Land Council over that part of the reserve known as reserve number A40783; and the whole of A40786;

(ii) A 50 year lease held by the Ngaanyatjarra Land Council known as Special Lease number 3116 10897; and

(iii) A number of sub-leases issued by the Ngaanyatjarra Land Council to Telstra for the purpose of erection of repeater stations for telecommunications transmission.

12. In relation to the leases issued to the Ngaanyatjarra Land Council over Reserve Number A40783, A40886 and Special Lease 3116 10897, the Applicants, by virtue of their traditional ownership of the area, are deemed to be members of the Ngaanyatjarra Land Council in accordance with the constitution of the Ngaanyatjarra Land Council. The Ngaanyatjarra Land Council must only exercise its prerogatives under the leases after consulting with the particular traditional owners of a particular area affected by any land use proposal. As a result of the foregoing the Applicants exercise full authority pursuant to the terms of the leases over the whole of the Claim Area."

The Reserve Number A40886 was an error and should have read A40786.

10 The native title rights and interests which are claimed include the following:

"i) To possess, use, occupy and enjoy the land and waters within the Claim Area;

ii) To make decisions about the use and enjoyment of the land and waters contained in the Claim Area;

iii) To access the country and manage, live and travel anywhere in the land and waters contained within the Claim Area;

iv) To conduct and participate in meetings and ceremonies in, and associated with, the Claim Area;

v) To control the access of others to and within the land and waters contained in the Claim Area; invite people onto the country; regulate access to particular areas of land to prevent others from visiting certain areas within the Claim Area;

vi) To use and enjoy the biological, geological and geomorphological resources found in the Claim Area for the purposes of subsistence, technology, trade, decoration, ceremony and ritual;

vii) To control the use and enjoyment by others of the resources of the land and waters found in the Claim Area;

viii) To maintain, protect and prevent the misuse of cultural knowledge associated with the land and waters contained in the Claim Area; and

ix) To be recognised by all others as the owners of the area entitled to make decisions in relation to all matters affecting the land and waters within the Claim Area; "

These of course are said to be subject to any legislation validly enacted by the Crown in right of the Commonwealth or the State of Western Australia.

11 Having regard to the agreement of the parties, and the supporting materials, I am satisfied that the proposed determination is appropriate.

12 I am also satisfied that it is appropriate that there should be scope for a variation of the form of the determination in the light of the High Court's judgment in the Ward case which is yet to be delivered. I am also satisfied that it is appropriate to make an order relating to the prospective formation of a prescribed body corporate as set out in the terms of the proposed minute.

13 The process which has led to today's determination has been a long and no doubt frustrating one from the point of view of the applicants. Today, however, their traditional ownership of their country is formally recognised by the common law of Australia and by this determination. That recognition is a matter of great significance to the Kiwirrkurra people. It is also a benefit to the wider Australia community which in recognising their relationship to country acknowledges its own history and a richer concept of its own nationhood.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 19 October 2001

Counsel for the Applicants:	Mr D O'Dea
Solicitor for the Applicants:	Mr D O'Dea
Counsel for the State of Western Australia:	Mr J O'Halloran
Solicitor for the State of Western Australia:	Crown Solicitor for the State of Western Australia
Date of Hearing:	19 October 2001
Date of Judgment:	19 October 2001